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The Public Gets To See What? OSHA’s New Electronic Recordkeeping and Anti-Retaliation Regulations

Labor & Employment Alert05/24/16 Fred Gants

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On May 11, 2016, OSHA published its final rule (1) requiring certain employers to electronically submit injury and illness logs; and (2) further codifying the OSHA Act's prohibition of employers from retaliating against employees for reporting injuries or illnesses. All of the new provisions go into effect August 12, 2016.

OSHA’s New Electronic Submission Requirements

The most significant aspect of OSHA’s recent regulations involves its requirement that certain employers electronically submit their injury and illness logs on an annual basis.

Establishments With 250 or More Employees

Establishments with 250 or more employees at any given time during a year must electronically submit their OSHA 300, 301, and 300A logs once a year. OSHA’s schedule for the required submissions includes:

Establishments with more than 20 but fewer than 250 employees, and in high risk industries, must electronically submit their OSHA 300A logs once a year. These employers will be required to electronically submit their OSHA 300A logs on July 1, 2017 and 2018, and then annually beginning on March 2, 2019.

OSHA’s Intent to Publish Employer Records

Consistent with its stated goal to “nudge” (a/k/a, shame) employers to improve workplace safety, OSHA intends to publish each establishment’s data on its public website, www.osha.gov. OSHA, however, will remove any “Personally Identifiable Information” before the data is released to the public. OSHA’s intent to publish this data is troubling, as employees, unions, and plaintiff’s attorneys will now be able to go to OSHA’s website, see the number of recordable injuries and illnesses, and use that information to bring claims or lawsuits against employers.

OSHA’s New Anti-Retaliation Provisions

In addition to the electronic submission requirements, OSHA’s new regulations also prohibit employers from retaliating against employees for reporting work-related injuries or illnesses, or otherwise taking actions that deter or discourage employees from reporting through the threat of retaliation. OSHA’s new regulations require employers to:

Establish a “reasonable procedure” for employees to report work-related injuries and illnesses. A procedure is not “reasonable” if it would deter or discourage an employee from reporting a workplace injury or illness. 29 CFR § 1904.35(b)(1)(i).

Inform each employee on the procedure for reporting a work-related injury or illness, 29 CFR § 1904.35(a)(1), (b)(1)(ii);

Inform each employee that: (a) they have the right to report work-related injuries and illnesses; and (b) employers are prohibited from retaliating against them for doing so, 29 CFR § 1904.35(b)(1)(iii); and

Refrain from retaliating against employees for reporting a work-related injury or illness, 29 CFR § 1904.35(b)(1)(iv).

Additionally, 29 CFR §1904.36 makes it a violation for any employer to retaliate against employees for reporting a work-related injury or illness, filing a safety and health complaint, asking for access to injury and illness records, or otherwise exercising any right afforded under the OSH Act.

In other words, the two new regulations, §§ 1904.35 and 1904.36, codify what is already protected under Section 11(c). However, unlike Section 11(c), OSHA may cite an employer even if the retaliated employee does not file a Section 11(c) complaint.

OSHA’s New Anti-Retaliation Provisions and Their Potential Impact on the Statute of Limitations and Abatement Measures

A troubling aspect of OSHA’s new anti-retaliation regulations is OSHA’s apparent attempt to bypass the 30-day statute of limitations under Section 11(c). Although Section 11(c) claims have a 30-day statute of limitation, OSHA has six months to issue a citation. Accordingly, the question becomes, does OSHA intend to use the new regulations to extend the 30-day statute of limitations to six months? If so, OSHA is arguably in violation the OSH Act’s plain language and attempting to bypass statutory language through administrative procedure—something OSHA is also trying to do through its “clarification” to the six-month statute of limitations on recordkeeping violations.

Also, what remedial measures can OSHA require under the new regulations? Employers issued OSHA citations are required to abate the hazard that is the citation’s basis. In other words, employers are required to add machine guards that did not previously exist, provide safety training that did not previously occur, or provide personal protective equipment that was not previously provided. However, what would be the abatement to a retaliation citation? Would it be reinstatement, back pay, compensatory damages, and punitive damages that already exist under Section 11(c)? Would it simply be a penalty amount, and, if so, will it automatically be classified as a willful violation and given the maximum penalty amount? All of these questions remain unanswered and will ultimately be addressed through OSHA citations and litigation before the Occupational Safety and Health Review Commission and Federal Circuit Courts of Appeal.